Home Health & Hospice Week

Warning: Don’t stop collecting the troublesome piece of F2F.

The home care industry hasn’t been speaking softly about the face-to-face encounter requirement, but it has recently been carrying a big stick — and that stick seems to be bringing some results.

Background: At its March on Washington conference, the National Association for Home Care & Hospice announced that it had decided to file a lawsuit over onerous face-to-face physician encounter requirements (see Eli’s HCW, Vol. XXIII, No. 12). However, NAHC agreed to hold off on filing the suit so it could meet with the Centers for Medicare & Medicaid Services on the issue.

NAHC reps met with CMS May 8, the trade group reports in its member newsletter. NAHC’s chief goal is to secure elimination of the physician narrative portion of the F2F requirement. (Scrapping the F2F encounter requirement will prove nearly impossible, since the mandate is contained in the untouchable Affordable Care Act.) Home health agencies have long contended that while the F2F encounter requirement is contained in the ACA law, the narrative portion of the requirement is not.

Lawsuit Will Wait In The Wings

“Based on the discussions at the CMS meeting, NAHC is further holding on filing the lawsuit to give CMS the opportunity to fully evaluate the concerns and the changes sought by NAHC,” the association says.

“I believe that CMS recognizes the validity of our concerns and the reasonableness of the corrective action that we requested in order to hold off on litigation at this time,” NAHC’s Val Halaman-daris says in the report. “However, if it appears that we are not making sufficient and expedited progress with CMS, the lawsuit is fully prepared for immediate filing in federal court,” he adds.

The vehicle for CMS to effect F2F regulatory change would be the 2015 home health prospective payment system rule, which CMS will propose in late June or early July. For NAHC to hold off on filing the suit, “it is crucial that enforcement activity on the documentation requirements be suspended in the interim as a showing of good faith by CMS,” the trade group insists.

NAHC and other industry reps have decried the F2F audits launched recently by Supplemental Medical Review/Specialty Contractor Strategic-HealthSolutions. An HHS Office of Inspector Gen-eral report recently revealed that those SMRC audits will hit every single HHA across the nation (see Eli’s HCW, Vol. XXIII, No. 15). But “we are looking for an across-the-board suspension of enforcement of the physician narratives by all of the Medicare contractors,” not just the SMRC, says William Dombi, vice president for law with the National Association for Home Care & Hospice’s Center for Health Care Law. “That means that Medicare would continue to review all other elements of Medicare coverage and the F2F requirements,” Dombi tells Eli.

Does that mean you can stop collecting physician narratives? Not quite yet, experts advise. First of all, CMS may not even agree to suspend the narrative portion of F2F review, points out attorney Robert Markette Jr. with Hall Render in Indi-anapolis. The agency has proven intractable in the past on the F2F issue, industry veterans point out.

“A series of discussion/negotiation meetings is being prepared for the period between now and the issuance of a final rule,” NAHC notes. “NAHC will evaluate progress at each meeting step to determine if litigation is necessary.” If the industry must resort to a lawsuit, it could take well over a year, at minimum, to process through D.C. federal court, Dombi explained at the conference.

But NAHC remains optimistic that CMS will heed the industry’s concerns. “We believe that CMS is giving serious consideration to our request,” Dombi tells Eli. “It is something that has happened in Medicare on other issues when CMS concludes that there is a need for policy clarifications, industry education, or wholesale policy changes.”

Halting review of the narratives would be very helpful, since evaluating them seems to be so subjective for reviewers, Markette says. But even if CMS does suspend medical review of the physician narrative portion of F2F, you still need to collect it. In one scenario, Medicare reviewers may stop judging the content of the narrative, but may simply check to see that a narrative is included, Markette suggests.

“Agencies dare not discontinue obtaining the documentation under any circumstances, even if CMS suspends medical review of physician narratives,” agrees Washington, D.C.-based health care attorney Elizabeth Hogue.

Unless CMS explicitly instructs agencies not to, you should plan on continuing to collect the narrative until the requirement is officially rescinded — if that ever happens, Markette advises. “You still collect it, you’re just less worried that it’s going to blow up in your face later,” Markette believes.

“Agencies should continue collecting the narratives unless CMS eliminates [that part of the requirement] altogether,” Hogue emphasizes. 

Note: For more information on F2F denials and how to avoid them, buy Eli’s Face-To-Face Documentation Handbook 2014 online at www.codinginstitute.com/face-to-face-documentation-handbook-2014.html.